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L7 - Brexit part 2 - Coggle Diagram
L7 - Brexit part 2
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Indirect effect
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What is unlcear, is the position of indirect effe tc moving forward post BREXIT. we are still in a position of change, with little case law.
Domestic indirect, as we are no longer a member but have retained eu law. domestic indirect effect then is arguably going to require domestic courts to attempt so far as is possible to overcome inconsistencies between relevant retained EU law and future acts of Parliament in favour of retained EU law norms.
Does that mean that when there's an inconsistency between retained EU law provisions and any future act of Parliament the national courts will have to apply so far as is possible in favour of the retained EU law norms?
doctrine of consistent interpertation: arguably it ceased to exist when we left, yet there was consistent interpretation during the transition period.
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Lipton v BA City Flyer
Original decision:UK is stilla EU member sate, as was doing implemntion period.
CoA - Implemntation period ended, Uk no longer MS of EU. CoA overturned decision under retained EU law, ordering BA to pay compensation.
ispute that arose from a claim for compensation that was made by an air passenger for a cancelled flight. - EU regulation 261/2004 allowed claim for compensation.
CoA: LJ Coulson relied heavily on the Cjeu. Whereas LJ Green examined the constitutional issues, including the status of this regulation and post-Brexit EU retained law. Wanted to question legal effect of S29.
Reasoning for why TCA applies, was bc the TCA sets out rules around the UK not lessening consumer protection post-Brexit. So, no longer bound by specific EU rules, there is an agreement not to regress in standers of consumer protection.
Sets out steps; Identify relevant EU provision, has this been amended by domestic law?. So as retained EU law, the law as amended should be interpreted by courts as a purposive construction. Reference should be made to CEU case ale prior to end of implementation period.
question for UKSC - is it sufficiently clear to say that the Court should have interpreted it in this way?
Retained EU Law
Rights - any rights powers, remedies and procedures, s4, 5,6 EUWA.
Retained case law ,s6 - the ukase is not bound by retained case law, yet take into account dicta of CJEU. So the CJEU is formative but not binding on UKSC but is bounding on lower courts.
Direct Eu legilsation, S3 concerns exit day, concerns all regulations and decisions but not directives.
EU derived domestic legislation, S2 Primary legislation.
Reminder
Supremacy: EU law will prevail where a conflict arises between an aspect of EU and national law. Post BREXIT this is through ratified EU law.
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Argument, tat indirect effect is not adressed explicitly and the European Union Withdrawal Act. However, there is the counter argument that it is absorbed in supremacy.